Criminal Law

Front 1

How does a state acquire Jurisdiction over a criminal matter?

Back 1

Generally, a state has jurisdiction over a crime if: any act constituting an element of the offense was committed in the state, an act outside the state causes a result in the state, the crime involved the neglect of a duty imposed by the law of the state, there was an attempt or conspiracy outside the state plus an act inside the state, or there was an attempt or conspiracy inside the state to commit an offense outside the state.

Front 2

What are the Classification of Crimes?

Back 2

There are two classes of crimes: felonies and misdemeanors. Felonies are generally punishable by death or imprisonment for more than one year; other crimes are misdemeanors.

Front 3

Due process requires that a criminal statute not be vague - what does it require for a statute not to be vague?

Back 3

There must be: (i) fair warning (i.e., a person or ordinary intelligence must be able to discern what is prohibited), and (ii) no arbitrary and discriminatory enforcement.
~ The Constitution places two substantive limitations on both federal and state legislatures - no ex post fact laws and no bills of attainder.

Front 4

How are Criminal statutes construed?

Back 4

Criminal statutes are construed strictly in favor of defendants.
~ If two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general.
~ The more recently enacted statute will control an older statute. Under new comprehensive codes, crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.

Front 5

What is Merger?

Back 5

At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor merged into the felony.

Front 6

What is the Modern Law stance towards Merger?

Back 6

There is no longer any merger except that one who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime (if the person solicited does complete it).
~ Similarly, a person who completes a crime after attempting it may not be convicted of both the attempt and the completed crime.

Front 7

Does Conspiracy merge with the completed crime?

Back 7

No - Conspiracy does not merge with the completed crime (e.g., one can be convicted of both robbery and conspiracy to commit robbery).

Front 8

What is the Rule Against Multiple Convictions for the Same Transaction?

Back 8

Double jeopardy prohibits trial or conviction of a person for a lesser included offense if he has been put in jeopardy for the greater offense. ~ However, a court can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime.

Front 9

Generally, what are the Elements of A Crime?

Back 9

A crime almost always requires proof of a physical act (actus reus) and a mental state (mens rea), and concurrence of the act and mental state.
~ It may also require proof of a result and causation (i.e., that the act caused the harmful result).

Front 10

What qualifies as a physical act?

Back 10

Defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act.
~ An act is a bodily movement.

Front 11

When does failure to act give rise to liability?
3 elements

Back 11

Failure to act gives rise to liability only if:
(i) Specific Duty - There is a specific duty to act imposed by law;
(ii) Knowledge - The defendant has knowledge of the facts giving rise to the duty to act; and
(iii) Possible - It is reasonably possible to perform the duty.
~ Note that A legal duty to act can arise from a statute, contract, relationship between the defendant and the victim (e.g., a parent has duty to protect child from harm), voluntary assumption of care by the defendant for the victim, or the creation of peril for the victim by the defendant.

Front 12

What are the major Specific Intent crimes and their intent?

Back 12

a. Solicitation: Intent to have the person solicited commit the crime.
b. Attempt: Intent to complete the crime
c. Conspiracy: Intent to have the crime completed.
d. First Degree Premeditated Murder: Premeditation
e. Assault (Attempted Battery): Intent to commit a battery.
f. Larceny and Robbery: Intent to permanently deprive the other of his interest in the property taken.
g. Burglary: Intent to commit a felony in the dwelling.
h. Forgery: intent to defraud.
i. False Pretenses: intent to defraud
j. Embezzlement: Intent to defraud.

Front 13

What is the Mental State of Malice, as a required state of mind for Common Law Murder and Arson?

Back 13

The intent necessary for malice crimes (common law murder and arson) sounds like specific intent, but it is not as restrictive; it requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur.

Front 14

Do defenses to specific intent crimes apply to malice crimes?

Back 14

No - Defenses to specific intent crimes (e.g., voluntary intoxication) do not apply to malice crimes.

Front 15

What is General Intent?

Back 15

Almost all crimes require at least "general intent," which is an awareness of all factors constituting the crime; i.e., defendant must be aware that she is acting in the proscribed way and that any required attendant circumstances exist. The defendant need not be certain that all the circumstances exist, it is sufficient that she is aware of a high likelihood that they will occur.

Front 16

What are the Major General Intent Crimes?

Back 16

1. Battery,
2. Rape,
3. Kidnapping,
4. False Imprisonment

Front 17

May A jury may infer the required general intent merely from the doing of the act?

Back 17

Yes

Front 18

What is Transferred Intent?

Back 18

The defendant can be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred.

Front 19

What Crimes does Transferred Intent apply to?
3 Crimes

Back 19

The doctrine of transferred intent applies to homicide, battery, and arson.
~ It does not apply to attempt.
~ Note: a person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim

Front 20

What is a Strict Liability Offense?

Back 20

A strict liability or public welfare offense is one that does not require awareness of all of the factors constituting the crime; i.e., the defendant can be found guilty from the mere fact that she committed the act. Common strict liability offenses are selling liquor to minors and statutory rape. Certain defenses, such as mistake of fact, are not available.

Front 21

How does the M.P.C. address degrees of fault?

Back 21

The M.P.C. eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:
1) Purposely
2) Knowingly
3) Recklessly
4) Negligence
~ When a statute requires that the defendant act purposely, knowingly, or recklessly, a subjective standard is used.

Front 22

What is acting Purposely?

Back 22

A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result.

Front 23

What is acting Knowingly?

Back 23

Key words Aware or Knows: A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.
~ Knowing conduct satisfies a statute requiring willful conduct.

Front 24

What is acting Recklessly?

Back 24

A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of the risk is not enough.
~ Thus, recklessness involves both objective ("unjustifiable risk") and subjective ("awareness") elements.
~ Unless the statute specifies a different degree of fault or is a strict liability offense, the defendant must have acted at least recklessly to be criminally liable.

Front 25

What is Negligence under the M.P.C.?

Back 25

A person acts negligently when he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. To determine whether a person acted negligently, an objective standard is used.
~ However, it is not just the reasonable person standard that is used in torts. The defendant must have taken a very unreasonable risk.

Front 26

What is a Vicarious Liability Offense?

Back 26

A vicarious liability offense is one in which a person without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee). The trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.

Front 27

What is Enterprise Liability?

Back 27

Liability of Corporations and Associations
At common law, a corporation does not have capacity to commit crimes.
~ Under modern statutes, corporations may be held liable for an act performed by:
(i) an agent of the corporation acting within the scope of his office or employment; or
(ii) a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.

Front 28

What is necessary re the actus reus and the mens rea for D to have committed a crime?

Back 28

There must be a Concurrence of Mental Fault With Physical Act.
~ The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act.
~ Note the Some crimes (e.g., homicide) require result and causation

Front 29

Who Were the Parties to a Crime at CL?

Back 29

Principal in the First Degree
Principal in the Second Degree
Accessory Before the Fact
Accessory After the Fact

Front 30

Who are the CL parties (definitions)?

Back 30

Principle In First Degree: person who actually engaged in the act or omission that constitutes the offense.
Principle In The Second Degree: person who aided, commanded, or encouraged the principal and was present at the crime
Accessory Before The Fact: person who assisted or encouraged but was not present
Accessory After The Fact: person who, with knowledge that the other committed a felony, assisted him to escape arrest or punishment

Front 31

What was necessary at CL for conviction of the Accessory?

Back 31

At common law, conviction of the principal was required for conviction of an accessory and the charge must have indicated the correct theory of liability (i.e., as principal or accessory).

Front 32

What is the trend as to Accomplice Liability under Modern Statutes?

Back 32

Most jurisdictions have abolished the distinctions between principals in the first degree and principals in the second degree or accessories before the fact.
~ All such "parties to the crime" can be found guilty of the principal offense. For convenience, however, think of the one who actually engages in the act or omission as the principal and the other parties as accomplices.
Note that An accessory after the fact (one who assists another knowing that he has committed a felony in order to help him escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.

Front 33

What is the Mental State required for Accomplice Liability?

Back 33

To be guilty as an accomplice, most jurisdictions require that the person give aid, counsel, or encouragement to the principal with the intent to encourage the crime. In the absence of a statute, most courts would hold that mere knowledge that a crime will result is not enough, at least where the aid given is in the form of the sale of ordinary goods at ordinary prices (e.g., a gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist).

Front 34

What is the Scope of Liability for the Accomplice - I.e. is the Accomplice for crimes committed in the course of committing the contemplated crime?

Back 34

Yes - An accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.

Front 35

Who are Necessary Parties Not Provided For?

Back 35

A party necessary to the commission of a crime, by statutory definition, who is not provided for in the statute is excluded from accomplice liability. For Example: If a statute makes the sale of heroin illegal, but does not provide for punishment of the purchaser, he cannot be found guilty under the statute as an accomplice to the seller.

Front 36

When must Withdrawal occur?

Back 36

A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
(i) Repudiation is sufficient withdrawal for mere encouragement.
(ii) Attempt to neutralize assistance is required if participation went beyond mere encouragement.

Front 37

What are the Elements of Solicitation?

Back 37

Solicitation consists of inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. ~ Note that It is not necessary that the person solicited respond affirmatively.

Front 38

Is it a Defense that the Crime Solicited could not have been successful?

Back 38

No, It is not a defense that the person is not convicted, nor that the offense solicited could not in fact have been successful.
~ In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation.
~ However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her (e.g., a woman cannot be found guilty of soliciting a man to transport her across state lines for immoral purposes).

Front 39

Does Merger apply to Solicitation?

Back 39

Yes, one who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime (if the person solicited does complete it).
~ Note: If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt. If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy.

Front 40

What is a Conspiracy?
(not elements)

Back 40

A conspiracy is an agreement between two or more parties to commit a crime.

Front 41

What are the Elements for Conspiracy?
3 elements

Back 41

A conspiracy requires:
(i) an agreement between two or more persons.
(ii) an intent to enter into the agreement; and
(iii) an intent by at least two persons to achieve the objective of the agreement.
~ Note that A majority of states require an overt act, but an act of preparation will suffice.

Front 42

May the agreement be inferred from joint activity?

Back 42

Yes

Front 43

Can there be a Conspiracy between the Corporation and an Agent for the Corporation?

Back 43

No - There can be no conspiracy between a corporation and a single agent acting on its behalf.
~ There is a split of authority as to whether the agents of a corporation can be deemed co-conspirators with the corporation.

Front 44

What is the Wharton Rule?

Back 44

Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (e.g., because it takes two people to commit adultery, it takes three people to conspire to commit adultery).

Front 45

Can there be a Conspiracy in Necessary Parties Not Provided for in the Statute Situations?

Back 45

Yes - The Wharton Rule does not apply to agreements with "necessary parties not provided for" by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense. (eg. selling of contraband situation)

Front 46

Can persons within a Protected Class be guilty of Conspiracy to commit the Subject Crime?

Back 46

No - If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime.
~ Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.

Front 47

What is the Traditional View as to the Acquittal of some Conspirators?

Back 47

Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.
~ In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.
Note that Acquittal is the key here. If the defendant and others allegedly conspired and only the defendant is charged and tried (e.g., the other parties are not apprehended or not prosecuted), the defendant can be convicted. But if the defendant is charged and tried and all the others have been acquitted, the defendant cannot be convicted. (i.e., The acquittals show that there was no one for the defendant to conspire with.)

Front 48

What is the M.P.C. Approach to Acquittals of Co-Conspirators and Conspiracy?

Back 48

The M.P.C. takes a Unilateral Approach - Under the M.P.C. "unilateral" approach, the defendant can be convicted of conspiracy regardless of whether the other parties have all been acquitted or were only feigning agreement.

Front 49

What is the Mental State required for Conspiracy?
(two intents required)

Back 49

Conspiracy is a specific intent crime. Parties must have:
(i) the intent to agree and
(ii) the intent to achieve the objective of the conspiracy.

Front 50

Is an Overt Act required for Conspiracy?

Back 50

Yes - Most states require that an act in furtherance of the conspiracy be performed.

Front 51

Is an Act of mere preparation sufficient for Conspiracy?

Back 51

Yes - An act of mere preparation is usually sufficient.

Front 52

When may a conspirator be held liable for crimes committed by other conspirators?
(2 Elements)

Back 52

A conspirator may be held liable for crimes committed by other conspirators if the crimes:
(i) were committed in furtherance of the objectives of the conspiracy and
(ii) were foreseeable.

Front 53

When does a Conspiracy Terminate?

Back 53

A conspiracy usually terminates upon completion of the wrongful objective.
The point at which a conspiracy terminates is important, because acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy. Unless agreed to in advance, acts of concealment are not part of the conspiracy.

Front 54

Is Impossibility a Defense to Conspiracy?

Back 54

No

Front 55

Is Withdrawal a Defense to Conspiracy?

Back 55

No - Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance of the conspiracy is performed.
~ Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.

Front 56

When is Withdrawal Effective?

Back 56

To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for the members to abandon their plans. If she has also provided assistance as an accomplice, she must try to neutralize the assistance.

Front 57

Does Merger apply to Conspiracy?

Back 57

No - Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. A defendant may be convicted of and punished for both.

Front 58

What is a Chain Relationship Conspiracy?

Back 58

A chain relationship is a single, large conspiracy in which all parties to subagreements are interested in the single large scheme.

Front 59

With a Chain Relationship Conspiracy, are members liable for the acts of the others in furtherance of the conspiracy?

Back 59

Yes - In this case, all members are liable for the acts of the others in furtherance of the conspiracy.

Front 60

What is a Hub-and-Spoke type Conspiracy?

Back 60

In a hub-and-spoke relationship a number of independent conspiracies are linked by a common member.

Front 61

In a Hub-and-Spoke Conspiracy, are members of the individual conspiracies (the Spokes) liable for the acts of the other conspirators?

Back 61

No, Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.

Front 62

What is Attempt?

Back 62

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime.

Front 63

What is the Mental State required for Intent?

Back 63

To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime.
~ Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (i.e., the intent to commit the crime).
For Example: To be guilty of attempt to commit murder, the defendant must have had the specific intent to kill another person, even though the mens rea for murder itself does not necessarily require a specific intent to kill.

Front 64

What type of Act is necessary for Attempt?

Back 64

An Overt Act beyond mere preparation.
~ Most courts follow the "proximity" test, which requires that the act be "dangerously close" to successful completion of the crime (e.g., pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient, but going to the store to purchase bullets or even driving to the intended victim's house is insufficient).

Front 65

What is the M.P.C. requirement for the Act requirement of Attempt?

Back 65

The M.P.C. requires that the act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime" that strongly corroborates the actor's criminal purpose.

Front 66

Which Act requirement is more substantial, the one for Conspiracy or the one for Attempt?

Back 66

The overt act required for attempt is much more substantial than the overt act required for conspiracy.

Front 67

Is Impossibility of Success a Defense to Attempt?

Back 67

Factual Impossibility Is No Defense
Legal Impossibility Is a Defense
~ Factual impossibility (i.e., that it was factually impossible for defendant to complete the intended crime) is not a defense to attempt (e.g., it is not a defense to attempted robbery that the intended victim had no money with her). This includes impossibility due to mistake in attendant circumstances (e.g., it is no defense to a charge of attempted receipt of stolen goods that the goods were no longer stolen because the defendant purchased them from an undercover police officer).
~ Legal impossibility (i.e., that it is not a crime to do that which the defendant intended to do) is a defense (e.g., defendant going fishing in a lake in which he erroneously believed fishing was prohibited cannot be convicted of attempted violation of the fishing ordinance).

Front 68

Is Abandonment a Defense to Attempt?

Back 68

Abandonment is not a defense. If defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed only her mind and abandoned the plan before the intended crime was completed.

Front 69

Does Merger Apply to Attempt?

Back 69

Yes - Attempt does merge with the completed crime.
~ Thus, a defendant cannot be found guilty of both attempt and the completed crime.
~ Also, a defendant charged only with a completed crime may be found guilty of attempt, but a defendant charged only with attempt may not be convicted of the completed crime.

Front 70

What is the M'Naghten Rule?
Remember M (Mental disease) 'N

Back 70

M'Naghten (M- mental disease, 'N not know or not understand)
Under this rule, a defendant is entitled to acquittal only if he had a mental disease or defect that caused him either:
(i) to Not Know that his act would be wrong; or
(ii) to Not Understand the nature and quality of his actions.

Front 71

Is loss of control because of mental illness a defense under M'Naghten?

Back 71

No

Front 72

What is the Irresistible Impulse Test?

Back 72

Under this test, a defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.

Front 73

What is the Durham (or New Hampshire) Test/Product?

Back 73

Under this test, a defendant is entitled to acquittal if the crime was the product of his mental illness, (i.e., the crime would not have been committed but for the disease.)
~ The Durham test is broader than either the M'Naghten test or the irresistible impulse test.

Front 74

What is the M.P.C. Test for Insanity?

Back 74

Under the M.P.C. test (which represents the "modern trend"), a defendant is entitled to acquittal if he had a mental disease or defect and as a result, he lacked the substantial capacity to either:
(i) Appreciate the criminality of his conduct (M'Naghten strand); or
(ii) Conform his conduct to the requirements of law (Irresistible Impulse Strand);

Front 75

The M.P.C. Test for Insanity combines what two tests?

Back 75

The M.P.C. Test combines the M'Naghten and the Irresistible Impulse tests by allowing for the impairment of both cognitive and volitional capacity.

Front 76

Who bears the burden of proof on Insanity?

Back 76

All defendants are presumed sane; the defendant must raise the insanity issue.
There is a split among the jurisdictions as to whether the defendant raising the issue bears the burden of proof.

Front 77

May a D refuse a psychiatric evaluation?

Back 77

~ If the defendant does not raise the insanity issue he may refuse a court-ordered psychiatric examination to determine his competency to stand trial.
~ If the defendant raises the insanity issue, he may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.

Front 78

May Confinement exceed the maximum period of incarceration for the offense charged?

Back 78

Yes - Confinement may exceed the maximum period of incarceration for the offense charged.
~ In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a mental institution until cured.

Front 79

When may a Defendant not be tried, convicted, or sentenced?

Back 79

Under the Due Process Clause a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable
(i) to understand the nature of the proceedings; or
(ii) to assist his lawyer in the preparation of his defense.
A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment. (check this).

Front 80

What is Diminished Capacity?

Back 80

Some states recognize the defense of "diminished capacity" under which defendant may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged.
~ Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well.

Front 81

When is Intoxication Voluntary?

Back 81

Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating.

Front 82

When is Voluntary Intoxication a Defense?

Back 82

It is a Defense to Specific Intent Crimes.
Evidence of "voluntary" intoxication may be offered by defendant only if the crime requires purpose (intent) or knowledge, and the intoxication prevented the defendant from formulating the purpose or obtaining the knowledge. Thus, it is often a good defense to specific intent crimes.
~ The defense is not available if the defendant purposely becomes intoxicated in order to establish the defense.

Front 83

Is Voluntary Intoxication A Defense to Other Crimes?

Back 83

Voluntary intoxication is No defense to crimes involving malice, recklessness, negligence, or strict liability.

Front 84

When is Intoxication Involuntary?

Back 84

Intoxication is involuntary only if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance's intoxicating effect.

Front 85

What is the result of establishing Involuntary Intoxication?

Back 85

Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if she meets the jurisdiction's insanity test.
~ Continuous, excessive drinking or drug use may bring on actual insanity and thus a defendant may be able to claim both an intoxication defense and an insanity defense.

Front 86

What is the Defense of Infancy?

Back 86

At common law, there could be no liability for an act committed by a child under age seven.
~ For acts committed by a child between ages seven and 14, there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts.
~ Children age 14 or older were treated as adults.
~ Modern statutes often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.

Front 87

What is the rationale for the Justification defenses?

Back 87

The justification defenses arise when society has deemed that although the defendant committed a proscribed act, she should not be punished because the circumstances justify the action.

Front 88

Under the Self-defense Defense, When may a D use Nondeadly Force?

Back 88

A person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat.

Front 89

Under Self-Defense, When may a D use Deadly Force?
3 elements

Back 89

A person may use deadly force in self-defense if:
(i) she is without fault;
(ii) she is confronted with "unlawful force"; and
(iii) she is threatened with imminent death or great bodily harm.
~ Note: if the defendant kills in self-defense but not all three of the requirements for the use of deadly force are met, some states would find the defendant guilty of manslaughter rather than murder under the "imperfect self-defense" doctrine.

Front 90

Is there a duty to retreat before the use of Deadly Force?

Back 90

Generally, there is no duty to retreat before using deadly force.
~ The minority view requires retreat before using deadly force if the victim can safely do so, unless:
(i) the attack occurs in the victim's home,
(ii) the attack occurs in the victim's home,
(iii) the attack occurs while the victim is making a lawful arrest, or
(iv) the assailant is in the process of robbing the victim.

Front 91

What is the Right of the Aggressor to use the Self-Defense Defense?
2 elements

Back 91

If one is the aggressor in the altercation, she may use force in defense of herself only if:
(i) she effectively withdraws from the altercation and communicates to the other her desire to do so, or
(ii) the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.

Front 92

What may a D use the Defense of Others Defense?

Back 92

A defendant has the right to defend others if she reasonably believes that the person assisted has the legal right to use force in his own defense.
~ All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense she acted.

Front 93

In Defense of a Dwelling, when may Nondeadly Force be used?

Back 93

Nondeadly force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack upon the defender's dwelling.

Front 94

In Defense of a Dwelling, when may Deadly Force be used?

Back 94

Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack upon an inhabitant, or to prevent an entry to commit a felony in the dwelling.
~ Note: as a practical matter, deadly force usually is justified in repelling a home invader but the basis for the right to use such force is not to protect the dwelling, but to protect the safety of the inhabitants of the dwelling.

Front 95

When may Deadly and NonDeadly Force be used in defense of Property?

Back 95

Deadly force may never be used in defense of property.
Nondeadly force: needs a request to desist; it may be used to defend property in one's possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice.

Front 96

When can Force be used in Regaining Possession of property?

Back 96

Force cannot be used to regain possession of property wrongfully taken unless the person using force is in immediate pursuit of the taker.

Front 97

For the Prevention of a Crime, when may Nondeadly Force be used?

Back 97

Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace.

Front 98

For the Prevention of a Crime, when may Deadly Force be used?

Back 98

Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.

Front 99

When may Deadly and Nondeadly Force be used by Police Officers to Effectuate and Arrest?

Back 99

Nondeadly force may be used by police officers if it reasonably appears necessary to effectuate an arrest.
Deadly force is reasonable only if it necessary to prevent a felon's escape and the felon threatens death or serious bodily harm.

Front 100

When may Deadly and Nondeadly Force be used by Private Citizens to Effectuate and Arrest?

Back 100

Nondeadly force: a private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime.
Deadly force: A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.

Front 101

When may Nondeadly and Deadly Force be used in Resisting Arrest?

Back 101

Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest.
Deadly force may be used, however, only if the person does not know that the person arresting him is a police officer.

Front 102

What is the Defense of Necessity?

Back 102

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime.

Front 103

Is the test for Necessity an Objective or Subjective one?

Back 103

The test is objective; a good faith belief not sufficient.

Front 104

Can the death of another person be justified under Necessity?

Back 104

Causing the death of another person to protect property is never justified.

Front 105

What is the Limitation of the Necessity defense as it relates to the Fault of the Defendant?

Back 105

The defense of necessity is not available if the defendant is at fault in creating the situation requiring that he choose between two evils.

Front 106

How is Necessity distinguished from Duress?

Back 106

Necessity involves pressure from natural or physical forces; duress involves a human threat.

Front 107

What is the Public Policy defense?

Back 107

A police officer (or one assisting him) is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.

Front 108

What is the Domestic Authority Defense?

Back 108

The parents of a minor child, or any person "in loco parentis" with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the child's welfare.

Front 109

What is the Excuse of Duress Defense?

Back 109

It is a defense to a crime other than homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.

Front 110

What is the Mistake or Ignorance of Fact Defense?

Back 110

Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime;
~ thus, it is irrelevant if the crime imposes "strict" liability.

Front 111

Does the Mistake need to be reasonable?

Back 111

If mistake is offered to "disprove" a specific intent, the mistake need not be reasonable; however, if it is offered to disprove any other state of mind, it must have been reasonable mistake or ignorance.

Front 112

Is Mistake or Ignorance of the Law a Defense?

Back 112

No - Generally, it is not a defense that the defendant believed that her activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney. However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.

Front 113

What are the Exceptions to Mistake of Law not being a valid defense?

Back 113

The defendant has a defense if: (i) the statute proscribing her conduct was not published or made reasonably available prior to the conduct; (ii) there was reasonable reliance upon a statute or judicial decision; or (iii) in some jurisdictions, there was reasonable reliance upon official interpretation or advice.

Front 114

Can Ignorance of the Law negate intent?

Back 114

Yes - If the defendant's mistake or ignorance as to a collateral legal matter proves that she lacked the state of mind required for the crime, she is entitled to acquittal. This rule applies only to those crimes in which the state of mind required involves some knowledge of the law.
Example: A defendant cannot be found guilty of selling a gun to a known felon if she thought that the crime the buyer had been found guilty of was only a misdemeanor.

Front 115

What is necessary for the Defense of Consent?
3 elements

Back 115

Unless the crime requires the lack of consent of the victim (e.g., rape), consent is usually not a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Whenever consent may be a defense, it must be established that:
(i) the consent was voluntarily and freely given;
(ii) the party was legally capable of consenting; and
(iii) no fraud was involved in obtaining the consent.

Front 116

Is Illegal conduct of the victim a defense?

Back 116

No - Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal conduct by the victim of a crime is no defense.

Front 117

What is necessary for the Defense of Entrapment?
2 elements

Back 117

Entrapment exists only if (i) the criminal design originated with law enforcement officers and (ii) the defendant was not predisposed to commit the crime prior to contact by the government.
~ Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.
~ Note that A person cannot be entrapped by a private citizen. Under federal law, an entrapment defense cannot be based upon the fact that a government agent provided an ingredient for commission of the crime (e.g., ingredients for drugs), even if the material provided was contraband.

Front 118

What is the definition of Battery?

Back 118

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Front 119

What is Aggravated Battery?

Back 119

~ Simple battery is a misdemeanor.
Most jurisdictions treat the following as aggravated batteries and punish them as felonies: (i) battery with a deadly weapon; (ii) battery resulting in serious bodily harm; and (iii) battery of a child, woman, or police officer.

Front 120

What is the definition of Assault?

Back 120

Assault is either:
(i) an attempt to commit a battery; or
(ii) the intentional creation ––(other than by mere words) –– of a reasonable apprehension in the mind of the victim of imminent bodily harm.
~ If there has been an actual touching of the victim, the crime can only be battery, not assault.

Front 121

What is Aggravated Assault?

Back 121

Aggravated assault (e.g., with a deadly weapon or with intent to rape or maim) is treated more severely than simple assault.

Front 122

What is the definition of Mayhem?

Back 122

At common law, the felony of mayhem required either dismemberment or disablement of a bodily part.
~ The recent trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.

Front 123

At Common Law, what Three forms is Homicide divided into?

Back 123

Murder, Voluntary Manslaughter, Involuntary Manslaughter

Front 124

What is the definition of Murder?

Back 124

Murder is the unlawful killing of a human being with malice aforethought.

Front 125

When will be Malice Aforethought be found (definitionally)?

Back 125

Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (i.e., giving rise to a defense) and it was committed with one of the requisite states of mind for murder.

Front 126

What are the Requisite States of Mind for Murder - there are Four of them?

Back 126

(i) Intent to kill;
(ii) Intent to inflict great bodily injury;
(iii) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or
(iv) Intent to commit a felony (felony murder); (here, malice is implied from the intent to commit the underlying felony);
~ Note that Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
[Malice: Law. The intent, without just cause or reason, to commit a wrongful act that will result in harm to another.]

Front 127

What is the Definition of Voluntary Manslaughter?

Back 127

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.

Front 128

When is Provocation Adequate (4 elements)?

Back 128

(i) It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person (passion must be reasonable under the circumstances), causing him to lose self-control (e.g., exposure to a threat of deadly force or finding your spouse in bed with another are adequate);
(ii) The defendant was in fact provoked;
(iii) There was not sufficient time between provocation (or provocations) and killing for passions of a reasonable person to cool; and
(iv) The defendant in fact did not cool off between the provocation and the killing.

Front 129

What is the Imperfect Self-defense Doctrine?

Back 129

Some states recognize an "imperfect self-defense" doctrine under which murder may be reduced to manslaughter even though: (i) the defendant was at fault in starting the altercation; or (ii) the defendant unreasonably but honestly believed in the necessity of responding with deadly force (i.e., defendant's actions do not qualify for self-defense).

Front 130

What is Involuntary Manslaughter?

Back 130

A killing is involuntary manslaughter if it was committed with criminal negligence (defendant was grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule).

Front 131

How do states usually Statutorily Modifiy the Common Law Classification of Murder?

Back 131

~ A murder will be second degree murder unless it comes under the following circumstances, which would make it first degree murder:
1. Deliberate and Premeditated - If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder.
2. Felony Murder - If a murder is committed during the perpetration of an enumerated felony, it is first degree murder. The felonies most commonly listed include arson, robbery, burglary, rape, mayhem, and kidnapping. In these jurisdictions, other felony murders are second degree murder.
3. Others - killings performed in certain ways (e.g., by torture)

Front 132

What is Felony Murder?

Back 132

Any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.

Front 133

What Felonies are included in the Felony Murder Doctrine?

Back 133

The felony murder doctrine is limited to felonies that are inherently dangerous.
At common law, there are only a handful of felonies (e.g., burglary, arson, rape, sodomy, etc.). Statutes today have created many more felonies

Front 134

What are the Limitations on Liability to Felony Murder?

Back 134

(i) The defendant must be guilty of the underlying felony.
(ii) The felony must be distinct from the killing itself (e.g., commission of aggravating battery that causes a victim's death does not qualify as an underlying felony for felony murder liability).
(iii) Death must have been a foreseeable result of the felony (a minority of courts require only that the felony was malum in se),
(iv) The death must have been caused before the defendant's "immediate flight" from the felony ended; i.e., once the felon has reached a place of "temporary safety," subsequent deaths are not felony murder.
(v) In most jurisdictions, the defendant is not responsible for the death of a co-felon caused by resistance from the felony victim or the police (although the defendant may be responsible for similar deaths of third parties).

Note that there are similar limitations upon Misdemeanor Manslaughter: Generally, the misdemeanor must be "malum in se", or, if the misdemeanor involved is not malum in se, the death must have been a foreseeable result of the commission of the misdemeanor.

Front 135

What is the Causation requirement for Homicide?

Back 135

The defendant's conduct must be both the cause-in-fact and the proximate cause of the victim's death.

Front 136

When will the D's conduct be the Cause In Fact of the Victim's death?

Back 136

A defendant's conduct is the cause-in-fact of the result if the result would not have occurred "but for" the defendant's conduct.

Front 137

When is a D's conduct the Proximate Cause of the Victim's death?

Back 137

A defendant's conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.

Front 138

What is the Year-And-A-Day Rule?

Back 138

For a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound.

Front 139

What is the result of an Intervening Act?

Back 139

Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant.
~ Note that a third party's negligent medical care and the victim's refusal of medical treatment for religious reasons are both foreseeable risks

Front 140

What is False Imprisonment?

Back 140

False imprisonment consists of the unlawful confinement of a person without his valid consent.
~ It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her. Note also that consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, retardation, or youth.

Front 141

What is Kidnapping?

Back 141

Modern statutes often define kidnapping as unlawful confinement of a person that involves either (i) some movement of the victim, or (ii) concealment of the victim in a secret place.
Aggravated Kidnapping - Aggravated kidnapping includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing (the consent of a child to her detention or movement is not of importance because a child is incapable of giving valid consent).

Front 142

What is Rape?

Back 142

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her Effective Consent.
Lack of effective consent exists where:
(i) Intercourse is accomplished by actual force;
(ii) Intercourse is accomplished by threats of great and immediate bodily harm;
(iii) The victim is fraudulently caused to believe that the act is not intercourse.
~ Note that consent due to other types of fraud (e.g., perpetrator persuading victim that he is her husband or that he will marry her) is effective.

Front 143

What is Statutory Rape?

Back 143

This is carnal knowledge of a female under the age of consent; it is not necessary to show lack of consent.
~ A showing of reasonable mistake as to age or a showing of voluntary consent is irrelevant since statutory rape is a strict liability crime.

Front 144

What is a Crime Against Nature (i.e., Sodomy)?

Back 144

A crime against nature (sodomy) consists of anal intercourse, oral stimulation of the sexual organs of another, or intercourse with an animal.

Front 145

What are Adultery and Fornication?

Back 145

Adultery is committed by both parties to sexual intercourse if either is validly married to someone else.
~ It is often required that the behavior be open and notorious.
Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.

Front 146

What is Incest?

Back 146

Incest consists of marriage or a sexual act between closely related persons.

Front 147

What is Seduction?

Back 147

Seduction consists of inducing, by promise of marriage, an unmarried woman to engage in intercourse.
~ The M.P.C. does not require chastity or that the female be unmarried.

Front 148

What is Bigamy?

Back 148

Bigamy is the common law strict liability offense of marrying someone while having another living spouse.

Front 149

What is the definition of Larceny?

Back 149

Larceny is: A taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive.
Enumerated:
(i) A taking (obtaining control);
(ii) And carrying away (asportation);
(iii) Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates);
(iv) Of another with possession;
(v) By trespass (i.e. without consent or by consent induced by fraud);
(vi) With intent to permanently deprive that person of her interest in the property.

Front 150

What is the distinction between Custody and Possession?

Back 150

Possession involves a greater scope of authority to deal with the property than does custody. Ordinarily, low level employees have only custody of an employer's property and so are guilty of larceny for taking the property. A bailee, on the other hand, has a greater scope of authority over an owner's property and so is not guilty of larceny for taking it, but may be guilty of embezzlement.

Front 151

What is a Continuing Trespass Situation?

Back 151

If the defendant wrongfully takes property without the intent to permanently deprive (e.g., without permission borrows an umbrella), and later decides to keep the property, she is guilty of larceny when she decides to keep it.
~ However, if the original taking was not wrongful (e.g., she took the umbrella thinking it was hers) and she later decides to keep it, it is not larceny.

Front 152

What is Embezzlement?

Back 152

The fraudulent conversion of personal property of another by a person in lawful possession of that property.
Enumerated:
(i) The Fraudulent;
(ii) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession);
(iii) Of personal property;
(iv) Of another;
(v) By a Person In Lawful Possession of that property.

Front 153

How is Embezzlement distinguished from Larceny?

Back 153

Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is in his rightful possession, while in larceny the defendant misappropriates property not in his possession.

Front 154

What is the intent required for Embezzlement?

Back 154

The intent to Defraud
~ Note that If the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money––of identical value––that he intended to return.
~ Note that as with larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether defendant took the property openly is an important factor.

Front 155

What is False Pretenses?

Back 155

False Pretenses is: Obtaining title to personal property of another by an intentional false statement of past or existing fact with the intent to defraud.
Enumerated:
(i) Obtaining title;
(ii) To Personal Property of another;
(iii) By an Intentional False Statement of past or existing fact;
(iv) With Intent To Defraud the other.

Front 156

How is Larceny by Trick distinguished from False Pretenses

Back 156

If the victim is tricked - by a misrepresentation of fact - into giving up mere possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses.
~ i.e., all the elements of larceny, but possession/consent is obtained by misrepresentation.
~ Note that for False Pretenses, The victim must actually be deceived by, or act in reliance upon, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. A misrepresentation as to what will occur in the future is not sufficient. A false promise, even if made without the present intent to perform, is also not sufficient.

Front 157

What is Robbery?

Back 157

Robbery is: The taking of personal property of another from the other's person or presence, by force or threats of immediate death or physical injury to the victim (or a member of his family, or some person in the victim's presence) with the intent to permanently deprive him of it.
Enumerated:
(i) A taking;
(ii) Of personal property of another;
(iii) From the other's person or presence (including anywhere in his vicinity);
(iv) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim's presence;
(v) With the intent to permanently deprive him of it.

Front 158

How is Robbery distinguished from Larceny?

Back 158

Robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim's property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.

Front 159

What is Extortion?

Back 159

Extortion is: The corrupt collection of an unlawful fee by an officer under color of office.
~ Under modern statutes, extortion (i.e,, blackmail) often consists of obtaining property by means of threats to do harm or to expose information.
~ Under some statutes, the crime is complete when threats are made with the intent to obtain property; i.e., the property need not be obtained.

Front 160

What are the elements of Receipt of Stolen Property (5 of them)?

Back 160

(i) Receiving possession and control;
(ii) Of "stolen" personal property;
(iii) Known to have been obtained in a manner constituting a criminal offense;
(iv) By another person;
(v) With the intent to permanently deprive the owner of his interest in it.

Front 161

Is Manual Possession necessary for Receipt of Stolen Property?

Back 161

No - Manual possession is not necessary. The defendant possesses the property when it is put in a location designated by her or she arranges a sale for the thief to a third person (i.e., "fencing").

Front 162

Must the property be "Stolen Property" at the time the D receives it?

Back 162

Yes - The property must be stolen property at the time the defendant receives it.
~ Note: check the property's status at the time defendant receives it. If the police have already recovered the property and use it with the owner's permission, it is no longer stolen, and the defendant cannot be convicted of receipt of stolen property. Note, however, that the defendant can be convicted of attempted receipt of stolen property if she intended to receive the property believing it to be stolen.

Front 163

What is Forgery?

Back 163

The making or altering a writing so that it is false with intent to defraud.
Enumerated:
(i) Making or altering (by drafting, adding, or deleting);
(ii) A writing with apparent legal significance (e.g., a contract, not a painting);
(iii) So that it is false; i.e. representing that it is something that it is not, not merely containing a misrepresentation (e.g., a fake warehouse receipt, but not an inaccurate real warehouse receipt);
(iv) With intent to defraud (although no one need actually have been defrauded).

Front 164

If the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing, what has been committed?

Back 164

Forgery.
~ Note that if the third person realizes he is signing the document, forgery has not been committed even if the third person is induced by fraud to sign it.

Front 165

What is Uttering a Forged Instrument?

Back 165

Uttering a Forged Instrument is: Offering as genuine an instrument that may be the subject of forgery and is false, with intent to defraud.

Enumerated:
(i) Offering as genuine;
(ii) An instrument that may be the subject of forgery and is false;
(iii) with Intent To Defraud.

Front 166

What is Malicious Mischief?

Back 166

(i) The malicious;
(ii) Destruction of or damage to;
(iii) The property of another.

~ Note that Malice requires no ill will or hatred. It does, however, require that the damage or destruction have been intended or contemplated by the defendant.

Front 167

What is Burglary?

Back 167

Burglary is: The breaking and entry of a dwelling of another at night with the intent to commit a felony inside.

Enumerated:
(i) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident's consent to enter, the entry is not a breaking);
(ii) And entry (placing any portion of the body or any instrument used to commit the crime into the structure);
(iii) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
(iv) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required);
(v) At nighttime;
(vi) With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary).

~ Note that Modern statutes often eliminate many of the "technicalities" of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (i.e., intent to commit misdemeanor theft is often enough).

Front 168

What is Arson?

Back 168

Arson is: The malicious burning of the dwelling of another.

Enumerated:
(i) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
(ii) Burning (requiring some damage to the structure caused by fire);
(iii) Of the dwelling;
(iv) Of another.

Front 169

What Damage is Required for Arson?

Back 169

Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson.
~ Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient.

Front 170

What is Houseburning?

Back 170

The common law misdemeanor of houseburning consisted of:
(i) a malicious;
(ii) burning;
(iii) of one's own dwelling;
(iv) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.

Front 171

What is Perjury?

Back 171

Perjury is the intentional taking of a false oath (lying) in regard to a material matter (i.e., one that might affect the outcome of the proceeding) in a judicial procedure.

Front 172

What is Subornation of Perjury?

Back 172

Subornation of perjury consists of procuring or inducing another to commit perjury.

Front 173

What is Bribery?

Back 173

Bribery at common law was the corrupt payment or receipt of anything of value for official action.

~ Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.

Front 174

What is Compounding a Crime?

Back 174

Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.
~ Under modern statutes, the definition refers to any crime.

Front 175

What is Misprision of a Felony?

Back 175

At common law, misprision of a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.

~ Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.

Front 176

Definition
What is Solicitation?

Back 176

Solicitation consists of inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime.

Front 177

Definition
What is Conspiracy?

Back 177

A conspiracy requires:
(i) an agreement between two or more persons.
(ii) an intent to enter into the agreement; and
(iii) an intent by at least two persons to achieve the objective of the agreement.

Front 178

Definition
What is Attempt?

Back 178

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime.

Front 179

Definition
What is the M'Naghten Rule?

Back 179

Under this rule, a defendant is entitled to acquittal only if he had a mental disease or defect that caused him either:
(i) to not know that his act would be wrong; or
(ii) to not understand the nature and quality of his actions.

Front 180

Definition
What is the Irresistible Impulse Test?

Back 180

A defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.

Front 181

Definition
What is the Durham (or New Hampshire) Test/Product?

Back 181

a defendant is entitled to acquittal if the crime was the product of his mental illness, (i.e., the crime would not have been committed but for the disease.

Front 182

Definition
What is the M.P.C. Test for Insanity?

Back 182

A defendant is entitled to acquittal if he had a mental disease or defect and as a result, he lacked the substantial capacity to either:
(i) Appreciate the criminality of his conduct; or
(ii) Conform his conduct to the requirements of law

Front 183

Definition
What is Battery?

Back 183

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Front 184

Definition
What is Assault?

Back 184

Assault is either:
(i) an attempt to commit a battery; or
(ii) the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Front 185

Definition
What is Mayhem?

Back 185

At common law, the felony of mayhem required either dismemberment or disablement of a bodily part.

Front 186

Definition
What is Murder?

Back 186

Murder is the unlawful killing of a human being with malice aforethought.

Front 187

Definition
What is Voluntary Manslaughter?

Back 187

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.

Front 188

Definition
What is Involuntary Manslaughter?

Back 188

A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

Front 189

Definition
What is Felony Murder?

Back 189

Any death caused in the commission of, or in an attempt to commit a felony is murder.

Front 190

Definition
What is False Imprisonment?

Back 190

False imprisonment consists of the unlawful confinement of a person without his valid consent.

Front 191

Definition
What is Kidnapping?

Back 191

Modern statutes often define kidnapping as unlawful confinement of a person that involves either (i) some movement of the victim, or (ii) concealment of the victim in a secret place.

Front 192

Definition
What is Rape?

Back 192

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.

Front 193

Definition
What is Statutory Rape?

Back 193

This is carnal knowledge of a female under the age of consent

Front 194

Definition
What is A Crime Against Nature?

Back 194

A crime against nature (sodomy) consists of anal intercourse, oral stimulation of the sexual organs of another, or intercourse with an animal.

Front 195

Definition
What are Adultery and Fornication?

Back 195

Adultery is committed by both parties to sexual intercourse if either is validly married to someone else.
Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.

Front 196

Definition
What is Incest?

Back 196

Incest consists of marriage or a sexual act between closely related persons.

Front 197

Definition
What is Seduction?

Back 197

Seduction consists of inducing, by promise of marriage, an unmarried woman to engage in intercourse.

Front 198

Definition
What is Bigamy?

Back 198

Bigamy is the common law strict liability offense of marrying someone while having another living spouse.

Front 199

Definition
What is Larceny?

Back 199

A taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive.

(i) A Taking;
(ii) And Carrying away (asportation);
(iii) Of Tangible Personal Property;
(iv) Of Another with possession;
(v) By Trespass;
(vi) With Intent to Permanently Deprive

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Definition
What is Embezzlement?

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The fraudulent conversion of personal property of another by a person in lawful possession of that property.

(i) The Fraudulent;
(ii) Conversion;
(iii) Of Personal Property;
(iv) Of Another;
(v) By a Person in Lawful Possession of that Property.

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Definition
What is False Pretenses?

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Obtaining Title to personal property of another by an intentional false statement of past or existing fact with the intent to defraud.

(i) Obtaining Title;
(ii) To Personal Property of another;
(iii) By an Intentional False Statement of past or existing fact;
(iv) With Intent to Defraud the other.

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Definition
What is Robbery?

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The taking of personal property of another from the other's person or presence, by force or threats of immediate death or physical injury to the victim with the intent to permanently deprive him of it.

(i) A Taking;
(ii) Of personal property of another;
(iii) From the other's person or presence;
(iv) By force or threats of immediate death or physical injury;
(v) With the intent to permanently deprive him of it.

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Definition
What is Extortion?

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The corrupt collection of an unlawful fee by an officer under color of office.

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Definition
What is Receipt of Stolen Property?

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(i) Receiving possession and control;
(ii) Of "stolen" personal property;
(iii) Known to have been obtained in a manner constituting a criminal offense;
(iv) By another person;
(v) With the intent to permanently deprive the owner of his interest in it.

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Definition
What is Forgery?

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The Making or Altering a writing so that it is false with intent to defraud.

(i) Making or altering;
(ii) A writing with apparent legal significance;
(iii) So that it is false;
(iv) With intent to defraud

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Definition
What is Uttering A Forged Instrument?

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Offering as genuine an instrument that may be the subject of forgery and is false, with intent to defraud.

(i) Offering as genuine;
(ii) an instrument that may be the subject of forgery and is false;
(iii) with intent to defraud.

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Definition
What is Malicious Mischief?

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The malicious destruction of the property of another.

(i) The malicious;
(ii) Destruction of or damage to;
(iii) The property of another.

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Definition
What is Burglary?

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The breaking and entering of a dwelling of another at night with the intent to commit a felony inside.

(i) A breaking;
(ii) And entry;
(iii) Of a dwelling;
(iv) Of another;
(v) At nighttime;
(vi) With the intent to commit a felony inside

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Definition
What is Arson?

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The malicious burning of the dwelling of another

(i) The malicious;
(ii) Burning;
(iii) Of the dwelling;
(iv) Of another.

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Definition
What is Houseburning?

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(i) a malicious;
(ii) burning;
(iii) of One's Own Dwelling;
(iv) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.

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Definition
What is Perjury?

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Perjury is the intentional taking of a false oath (lying) in regard to a material matter in a judicial procedure.

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Definition
What is Subornation of Perjury?

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Subornation of perjury consists of procuring or inducing another to commit perjury.

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Definition
What is Bribery?

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The corrupt payment or receipt of anything of value for official action.

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Definition
What is Compounding a Crime?

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Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.

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Definition
What is a Misprision of a Felony?

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The failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.